Mrs Angela Browning (Tiverton & Honiton, Conservative)

May I ask the Minister for clarification on the inability to retain information, as outlined in subsection (1)(b)? Subsection (2) states:

''The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.''

Can he clarify the provision? When I read it, I envisaged a scenario in which someone would be regarded as incapable of making a decision about residential care, for example, because he was unable to retain the information. However, it would be common for someone who has talked to carers and others about moving into residential care and who has been taken to look around a particular home to have forgotten all about the initial experience on being admitted a few weeks later. I wonder whether there is a contradiction in the clause and the meaning of ''a short period'' under subsection (2).

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I am grateful to the hon. Lady for her contribution. I come back to Jim, whom I met in the Royal London hospital on Friday last week. Two factors are involved. Six weeks after his major car accident, Jim cannot retain lengthy information about the context of his environment. Indeed, doctors and nurses told me that there are occasions when he wakes up and presents himself as aggressive and confused because he did not realise that he was in hospital.

Jim can, however, make quite clear decisions. He is beginning to get his speech back, and I saw him working with his speech therapist about his food and diet. In that sense, he can retain information and draw on it. When one talks to neurologists about the lack of understanding that they still have about the brain, it is fascinating to know that people can draw on basic information about food and diet, which relates to parts of the brain that grow first, as it were, but cannot talk about the accident or make detailed decisions.

The interplay between subsections (1)(b) and (2) goes back to the functional test between the ability to make a judgment about fluctuating capacity and the ability to make a distinction in what may be day-to-day or small decisions, or more serious ones. The hon. Lady will know that it would have most certainly been

the case not so long ago that Jim would just have been assumed to lack capacity. He would have been fed what doctors, nurses and anyone else thought he needed. There would have been no attempts to communicate with him about his diet. From what I saw, Jim has the ability to communicate, for example, whether he has a peanut allergy, but not to retain more complex information. The clause allows carers to make those difficult judgments that must be made on a case-by-case analysis.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.